The Obergefell Dissents: All Due Respect

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The Obergefell Dissents: All Due Respect

Published in the Daily Record July 10, 2015

Along with most of my friends and most of the people I respect, I rejoiced in the result of the Supreme Court’s recent Obergefell decision, establishing same-sex marriage as a constitutionally-protected right. Yet I realized as soon as I heard of that result, and even before reading Justice Kennedy’s opinion, that there was a paradox in the ruling that dissenters were bound to seize upon. No one is going to argue with a point the dissents (separately written ones by Chief Justice Roberts and Justices Scalia, Alito, and Thomas) all make: that same-sex marriage is a novelty both in human civilization and in American law. And the Constitution is very old. How, then, the dissenters have asked, is something so new rooted in something so old?

Something New From Something Old

The dissenters’ critique is mostly serious – setting aside Justice Thomas’ disingenuous inanity about slavery not affecting the dignity of the slaves[1] – and we need to give it its due respect. The dissents collectively go to the legitimacy of judicial activism – which for many years has mainly been fomented by the dissenters, incidentally.

The answer Justice Kennedy’s majority ruling provides to the critical question (how does something so new come from something so old?) is detailed but straightforward in its outline. Kennedy sees due process and equal protection as deliberately abstract terms, bones to be fleshed out anew in each generation, intentional play in the joints. Our understanding of these terms is bound to evolve, and it has evolved. Marriage is so fundamental to human happiness that it has long been recognized as a fundamental right for both due process and equal protection purposes.[2] In order to be meaningful it must allow people to select their own spouses without much interference by the state, as recognized in the old Loving case, which denied the states the ability to forbid interracial marriage. To be meaningful for heterosexuals, in like wise, it must contemplate men and women marrying, and in order to be meaningful for homosexuals it must contemplate same-sex couples marrying. The state has no compelling interest in forbidding the exercise of that right, and hence no power to do so.

The dissents question or deny Kennedy’s premise, i.e. they say that due process and equal protection usually protect enumerated rights (ones explicitly referred to elsewhere in the Constitution, like freedom of speech), and that constitutional jurisprudence has traditionally been extremely cautious to recognize new unenumerated rights as lying under the protection of those clauses. Equating same-sex marriage with the opposite-sex marriage protected by due process and equal protection, they say, is a fundamentally different jump from the jump between same-race to mixed-race marriage that occurred in the Loving case.

Not “Redefining” Marriage, Just Who May Marry

Let me say right now that this is where the dissents lose me. That is, I (and doubtless most of my friends) do not personally find same-sex marriage to be such a radically different thing from opposite-sex marriage, for all its novelty in human history. Allowing it does not, to use the dissenters’ term, redefine marriage, merely who may enter into it. But I acknowledge that others see it quite differently. And so let us go with the dissenters’ premise for a moment and see where it leads. I think, granting their premise, they have two reasonable perceptions.

Some Bad Calls

First, they point out that if we assign Supreme Court justices the task of determining what new rights are fundamental, that assignment is being handed to a group with a less than stellar record. The dissenters’ Exhibit A is Lochner v. New York, the 1905 decision that elevated the freedom of contract of bakery owners above the power of the New York legislature to enact legislation protecting rank-and-file bakers from sweatshop hours. They also mention Dred Scott, the 1856 decision that announced a substantive due process right to hold slaves. And they are certainly right about the lesson to learn from these cases.

I would go further. The majority does not mention 2010’s Citizens United, my own personal Exhibit A, where the Court perceived that corporations, like human beings, have freedom of speech; talk about an ill-advised leap in the world of fundamental rights! Citizens United, being recent, is a far more potent instance of the threat. (No surprise it goes unmentioned, though, since every one of the dissenters joined the Citizens United majority.)

So yes, justices have been known to get it wrong when they identify fundamental rights. And they will again. Still, identification of fundamental rights is part of their job description.[3] They should heed the dissenters about doing it hesitantly, that’s all.

Judicial Policy-Making

The dissenters’ second point is that judicial expansion of fundamental rights will instantly stifle the legislative policy-making which was busy taking place around the country over the same-sex marriage issue. Had the majority not intervened, the dissenters protest, the emerging consensus around the issue would have been placed on the far more legitimate platform of legislative enactment by democratically-elected lawmakers.

Justice Kennedy responds unapologetically that the fundamental thing about fundamental rights is that they are not subject to legislative negotiation. That was effectively the Court’s line in Dred Scott, Lochner, and Citizens United, too, and it was wrong there. So I share the dissenters’ discomfort with overriding state policy-making. But in this case I don’t see how the Court could have waited. There was a conflict in the Circuits that was setting up a train wreck on a large scale: many same-sex marriages lawful where contracted that would have gone unrecognized in states the couples might have moved to. Crossing a state line could not have been allowed to wreak such crazy consequences. And it would have happened a lot, given that it was not in the cards that all the states would have gone with the emerging consensus in favor of same-sex unions anytime soon.[4] Until the Circuit split, it seemed that the court had been holding back after the Windsor case, which ended the federal policy against same-sex marriage.

But the dissenters are also right that the Court should try, where possible, to leave policy to legislatures.

Paramount Considerations

That said, in this case there were even more valid paramount considerations. The biggest was this: Same-sex marriage is new, but for constitutional purposes it fits hand-in-glove with conventional marriage. Justice Kennedy’s encomium to matrimony as essential both to society and to human happiness was right on target. In all the litigation over that issue, there has never been an intellectually coherent reason advanced to exclude homosexuals from that institution, or to prohibit them from participating in it with members of their own sex, the only way that would confer its benefits upon them and hence upon society.

The dissenters mocked Kennedy’s encomium to marriage, saying that all the hearts and flowers did not add up to a constitutional argument. They were wrong; hearts and flowers are exactly where the marriage right and many others begin, because fundamental rights are there to secure human happiness.

We must, as the dissenters urged, remain vigilant against the Court getting it dreadfully wrong when it identifies fundamental rights. And the Court should be mindful of the great benefits of letting the political process play out. But Obergefell still exemplifies why we have play in the joints, and a Court to flex them.


[1] Thomas’ point was that slavery didn’t rob slaves of their innate human dignity. True, but trivial and transparently not a response to Justice Kennedy’s point. When Kennedy said that gays were being deprived of dignity by laws that discriminated against them, he obviously meant dignity in the eyes of society and of the law.

[2] When I looked at the way this judicial debate was shaping up last year, I anticipated that most of the “action” in the upcoming Supreme Court case would be on the equal protection front. I was wrong. As at least one of the dissents commented, Justice Kennedy’s exploration of the subject stayed mainly in the due process arena, although it certainly relies on equal protection as well. To me, the resort to equal protection would have been more helpful if Kennedy had stayed closer to conventional equal protection analysis, which is not concerned so much with fundamental rights as with inequitable treatment of similarly-situated groups.

[3] When people, even smart ones, are upset with something judges have done or might do, they tend to forget this. That is when the “unelected judges” slur gets slung. (Of course, when we are pleased with them, then they are all “Daniels come to judgment.”) But we have known since Marbury v. Madison (1803) that courts have a fundamental duty to hold legislation up to the Constitution and disqualify legislation that does not conform. We have likewise known that judges must in the end use their own conceptions of the Constitution in making that comparison, and that, with federal judges deliberately isolated from political retribution by their unelected status, “It is emphatically the duty of the Judicial Department to say what the law is.” There must and will be times when the law thus construed will relate to fundamental rights. This is not overreach; this is the judiciary doing its job.

[4] The dissents tend to make it sound as if the states were all reaching a consensus in favor of same-sex marriage. I haven’t done the analysis, but clearly there were plenty of states, at least four of them inside the Sixth Circuit, the Circuit that caused the split, which had forbidden same-sex marriage by legislative means or constitutional enactment. Had the Supreme Court deferred to the wisdom of all of the nation’s legislatures, universal sanctioning of same-sex unions probably would not have occurred in the lifetime of anyone reading these words.

Copyright (c) Jack L. B. Gohn

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